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Depiction of bomb defuser not a misuse of soldier’s identity

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An Academy Award-winning film that addressed “an issue of paramount importance in the Iraq war” is protected speech about a public issue, a federal judge in California ruled yesterday, dismissing a U.S. serviceman’s lawsuit alleging “The Hurt Locker” unlawfully benefited from the use of his identity without his consent.

Army Sgt. Jeffrey Sarver could not convince the court he was likely to prevail on his claims, which also included defamation, false light invasion of privacy and emotional distress, against director Kathryn Bigelow, screenplay writer Mark Boal and other individuals and organizations associated with production of the film. Boal’s screenplay is about a fearless bomb-disposal technician. The movie won the Oscar in 2010 for Best Picture. The court granted the movie producers’ motion to strike the suit under the California anti-SLAPP statute, which allows early dismissal of meritless claims based on First Amendment-protected activities.

Sarver’s suit claimed the film used his name and likeness, without his consent, to serve as the basis of its portrayal of protagonist Will James. While reporting a 2005 article for Playboy that focused entirely on Sarver’s life and experience in Iraq, Boal was embedded with the serviceman’s unit and conducted additional interviews with him after the unit returned to the United States.

The court found, however, that on-screen depictions of the lead character were sufficiently “transformative” to bring the material within the scope of First Amendment protection.

“Defendants unquestionably contributed significant distinctive and expressive content to the character of Will James. Even assuming that Plaintiff and Will James share similar physical characteristics and idiosyncrasies, a significant amount of original expressive content was inserted in the work through the writing of the screenplay, and the production and direction of the movie,” the court said, noting nearly 30 differences between Sarver’s experience and the portrayal of Will James, including the fact that, unlike Sarver, the cinematic character accidentally shot an American soldier while trying to rescue him and was redeployed to Iraq after returning home.

The court also rejected Sarver’s claim that he was defamed by the movie’s depiction of the James character as a bad father and a soldier who violated military rules and regulations, among other negative traits — an assessment that falsely characterized the protagonist, according to the court.

“In ‘The Hurt Locker,’ Will James keeps photos of his son with him in Iraq and is shown visiting his wife and child while on leave from duty,” the court said of Sarver’s claim that James is depicted as a man who does not love his son. “The Court also finds no support in the movie for Plaintiff’s allegation that he is portrayed as a man who had no respect or compassion for human life. To the contrary, ‘The Hurt Locker’ depicts Will James as having compassion for the Iraqi citizens whose lives are affected by the war.”

The court quickly disposed of Sarver’s claim of invasion of privacy by false light, holding that California law does not allow two causes of action based on the same speech, in this case defamation and false light. Even so, the false light claim would fail because the portrayal of Sarver was not highly offensive to a reasonable person, as that cause of action requires, the court ruled.

Moreover, Sarver tried to argue that the film’s depiction of him in “embarrassing and unflattering ways” caused him severe emotional distress. But defendants’ conduct was neither extreme nor outrageous, both of which are required to prevail on an emotional distress claim, the court held.

“Boal was embedded in Plaintiff’s unit to report on the efforts of Plaintiff’s bomb disposal unit in the Iraq war. The fact that his report led to a screenplay which became a movie is not outrageous. Rather it is commonplace that movies are based on real events,” the court said. “Further, Plaintiff voluntarily submitted to interviews with Boal both in Iraq as well as after returning home to Wisconsin. Finally, even if the lead character was based on Plaintiff, Defendants used a fictional name for the character, which falls short of extreme and outrageous conduct.”

The California anti-SLAPP statute requires a court that grants a defendant’s motion to dispose of a claim under the law to impose costs and attorney fees on the other side. As such, the judge ordered Sarver to pay defendants’ attorney fees, the amount of which was not stated in the ruling.

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